Press Release: Constitutional Court to Rule on Using Corporal Punishment at Home

Today the Constitutional Court is hearing argument on whether parents who use corporal punishment to discipline children should retain a special defence against a criminal charge of assault. The Legal Resources Centre (LRC)  is representing the Parent Centre, the Global Initiate to End All Forms of Corporal Punishment of Children and the Dullah Omar Institute for Constitutional Law, Governance and Human Rights as amici curiae in the matter. 

 

The LRC clients argue that corporal punishment in the home is detrimental to children and that positive parenting methods, including positive discipline, ensures better outcomes for children in respect of their physical, emotional and psychological well-being and ensures a better and more secure relationship between parent and child. It is therefore more protective of children’s rights and overwhelmingly in the best interests of children that corporal punishment in the home should not be allowed.

 

Historically, a parent who was charged with assault of his or her own child could raise a defence against the charge that the physical punishment was “reasonable chastisement”. In most instances, this would mean a parent would never be charged. In the matter of S v YG, the High Court in Johannesburg found that the defence of reasonable chastisement was not in line with children’s constitutional rights and declared it invalid. This meant that a parent charged with assault of his or her own child could no longer rely on a special defence and a charge of assault would be valid as it would in any other instance of assault. Practically, the abolition of the defence of reasonable chastisement means that any instance where a parent uses physical punishment to discipline their child amounts to assault, although it doesn’t mean a charge would automatically follow in each instance.

 

The religious rights group, Freedom of Religion South Africa (FORSA) took the decision of the High Court on appeal arguing that it infringes the rights of parents to lovingly spank or smack their child in accordance with the proverb “spare the rod, spoil the child” and disempowers parents. The appeal is opposed by the Minister of Social Development who supports a ban on corporal punishment in the home. There are also three human rights organisations, represented by the Centre for Child Law, who are respondents opposing the appeal: the Children’s Institute, the Quaker Peace Centre and Sonke Gender Justice. They argue that corporal punishment amounts to violence against children, is harmful to children and violates children’s right to equality, dignity and physical integrity.

 

FORSA argues that corporal punishment is a key tenet of many religions and the court must protect parent’s right to physically discipline their children in order to correct their behaviour. FORSA disagrees that positive parenting is effective to curb misbehavior. FORSA reduces positive parenting to sending a child to sit in a naughty corner or to taking away a privilege. It also argues that poor families do not have such luxuries. This fundamentally misconstrues positive parenting and positive discipline. Positive parenting does not require material aids or expensive tools. It is about the relationship between the parent and child.

 

The submissions by the amici curiae show that positive parenting, including positive discipline not only benefits the child but benefits the parent and the parent-child relationship. Positive parenting includes positive reinforcement and involvement, warmth and affection and consistent non-violent discipline. It requires parents to stop and think about their child’s behaviour, to attempt to understand the reasons or factors influencing that behaviour and to react accordingly rather than simply hitting the child. Positive discipline must be coupled with positive parenting. This involves positive reinforcement when the child behaves well and maintaining open communication with the child. It encourages the parent to see the child as a person, rather than a subordinate, and to treat them with empathy and respect. This is consistent with the approach adopted in the Convention on the Rights of the Child, which moves children from the status of objects to be cared for, to persons with rights of their own that must be articulated and enforced.

 

Studies show that children who are positively parented are more likely to likely to achieve their developmental potential, learn pro-social skills, and make a meaningful contribution to society. They are also more likely to transfer these skills to their own children, thus strengthening the intergenerational transfer of positive parent–child relationships and child development

 

The Parent Centre (the First Amicus Curiae) has had significant success in teaching positive parenting techniques to parents from poor communities on the Cape Flats and strongly disagrees with the argument that positive parenting is a luxury that is out of the reach of lower income families.

 

FORSA also argues that doing away with the defence of reasonable chastisement will lead to a flood of criminal charges against parents. The Global Initiative to End All Forms of Corporal Punishment has conducted extensive research in this regard and placed evidence before the court that FORSA’s fear is baseless. There is no evidence to suggest that countries that protect children from physical punishment have experienced an increase in the prosecution of parents for minor lapses. Cases of physical chastisement are generally addressed through the intervention of social workers and referral to support and preventative services, rather than criminal prosecutions. In South Africa, section 144 of the Children’s Act already expresses a preference for non-violent forms of discipline and provides for prevention and early intervention programmes to assist parents.

 

 

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Carina du Toit:          071 603 8292

 

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Tad Khosa:                081 346 0180